Sanders v. Commonwealth

• Decision Date: 20 May 1932
• Citation: 244 Ky. 77,50 S.W.2d 37
• Parties: SANDERS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

50 S.W.2d 37

244 Ky. 77

SANDERS v. COMMONWEALTH.

Court of Appeals of Kentucky

May 20, 1932

Appeal from Circuit Court, Taylor County.

Roy Sanders was convicted of manslaughter, and he appeals.

Affirmed.

O. B Bertram, of Campbellsville, for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

REES J.

Appellant Roy Sanders, was indicted in the Taylor circuit court for the murder of his wife, Matre Sanders, and on the trial was convicted of manslaughter and sentenced to a term of twenty-one years in the penitentiary. On this appeal he insists that the judgment should be reversed because (1) the evidence is not sufficient to sustain the verdict of the jury, and (2) incompetent evidence prejudicial to his substantial rights was admitted over his objections.

The indictment charged that appellant murdered his wife by striking her with his hands, fists, clubs, and automobile accessories and by cutting her with his pocketknife, thereby forcing her to jump or fall from his automobile while it was being driven by him at a high rate of speed.

The tragedy happened on September 12, 1931, while appellant, his wife and their child, who was about eighteen months of age, were traveling in appellant's automobile from Campbellsville in Taylor county to Columbia in Adair county. As they passed the store and post office at Romine, Mrs. Sanders jumped or fell from the automobile. Her body rolled about twenty feet, and she died within an hour without regaining consciousness.

It is the commonwealth's theory that appellant had attacked his wife and put her in such fear of death or great bodily harm that she was forced to and did jump from the automobile, sustaining injuries resulting in her death; while it is appellant's theory that the door on the side of the automobile on which his wife was riding, and which he claims was defective, opened, causing her to fall out, and that the occurrence was purely an accident.

The only eyewitnesses besides the appellant were George Romine, who was introduced as a witness by the commonwealth, and M. F. Gore, who testified for the appellant. It appears that the store in which the post office is located is the only building at Romine. George Romine was standing on the platform in front of the store, and saw the automobile approaching at a speed of 30 or 35 miles an hour. In relating what happened as the automobile passed the store, the witness said: "She went right out the door and stopped on the running board and then fell to the ground. I was standing on the platform in front of John Romine's store and I saw the defendant coming in this direction from me and right as they got there in front she jumped out on the running board and when she got at this angle she jumped off." On cross-examination he testified on this point as follows: "Q. You don't know whether the door opened and she fell out or not? A. She didn't fall out. Q. Well, in what position did she fall? A. She swung around and got on the running board of the car and then jumped off."

M. F. Gore testified that he was standing near the store on the right-hand side of the road considering the direction in which appellant's automobile was traveling and within about 15 feet of the point where Mrs. Sanders jumped out. He saw the automobile when it was about 100 yards away. On direct examination he said: "I never noticed anything until she got even with the platform at the store. She opened the door and I reckon it must have been something like 15 feet above the platform she stepped right out on the running board and come out on the pike." Appellant stopped his automobile about 100 yards down the road, and backed it to a point opposite where his wife was lying on the side of the road. George Romine and M. F. Gore assisted him in lifting her onto the front seat of the automobile. He then drove to the residence of Dr. E. B. Atkinson at Cane Valley, which is four miles from Romine. Mrs. Sanders died within a few minutes after her arrival there. Dr. Atkinson asked appellant how his wife received her injuries, and appellant said that the door of the automobile was defective, and as he rounded a curve in the road the door opened and she fell out. Dr. Atkinson's wife testified that she offered to call his wife's people, and he told her they did not have a telephone. She knew that they did have a telephone, and called them anyway. She also asked him where his children were, and he told her that they were at the home of Allen Bennett, but later he told her they were at a Mrs. Cook's.

A number of witnesses testified that the road at Romine is straight for a distance of 70 to 100 yards on either side of the store, and there is no evidence to the contrary. Immediately after appellant's wife was placed in the car and he drove away, Mrs. John Romine found an open pocketknife in the center of the road and at the spot where appellant had just cranked his car. The knife had a broken handle. On the trial appellant denied that it belonged to him, but two or three witnesses identified it as his property. Dr. B. T. Black, the coroner of Taylor county, who held the inquest, described the cuts and bruises he found on Mrs. Sanders' body. Her skull was fractured, her jawbone broken, and she was badly cut and bruised about her head and body. He testified that all of these cuts and bruises could have been caused when she fell on the road, but that in his opinion all of them were not so caused.

Appellant was 29 years of age at the time of the trial. He and his wife had been married 12 years, and they had five children. The evidence shows that he had a jealous disposition, and had threatened on a number of occasions to kill his wife. A few weeks before her death appellant and his wife passed near the home of Mrs. Cassy Shepherd. Mrs. Sanders got out of the automobile, opened the...